Employment Discrimination Blog

Unlike race and religion, gender identity has yet to be cloaked with the highest level of equal protection by the U.S. Supreme Court. Nonetheless, many states and local municipalities have begun the process of implementing regulations and statutes to address the rights of those in the transgender community. While some jurisdictions have put into place exclusive policies concerning bathroom usage, the general upswing is toward offering transgender individuals the same level of protection from discrimination as women, racial minorities and those identifying as a practitioner of a particular religion.

Beginning with gender-based bathroom policies, the Equal Employment Opportunity Commission has made it clear that an employer cannot require a transgender individual to utilize a single-person unisex bathroom without first ensuring the individual is offered the opportunity to use the facility that corresponds with his or her gender identity. In other words, employers cannot “single out” transgender employees by requiring them to use a unisex, single-person lavatory. However, authorities from OSHA have explained that “multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls” are acceptable, so long as these facilities are advertised for use by all employees, not just those identifying as transgender.

Sexual orientation, which includes identifying as gay, lesbian or bisexual, is often protected under Title VII – however, the courts are currently split as to this applicability. As it currently stands, sexual orientation is not protected under the strict scrutiny standards extracted from the Fourteenth Amendment, however this issue is steadily litigated and will likely continue to develop.

If you are an employee enduring workplace harassment or discrimination based on gender identity or sexual orientation, you may have a claim for damages against your employer – particularly if you are a state or federal employee in Georgia.